the Seventh Circuit concluded the Supreme Court “left open the question of whether a motion

following a resentencing is ‘second or successive’ where it challenges the underlying conviction, not

the resentencing.” Suggs, 705 F.3d at 284. Thus, because the Court left that question open, the

Seventh Circuit felt bound to follow the precedent established in Dahler, and continues to hold that,

where a petitioner does not claim that any errors, new or repeated, occurred in the resentencing, and

only claims errors made in the underlying conviction, such a petition is a second or successive

petition. Suggs, 705 F.3d at 284-85.

Whether Petitioner’s Petition is Second or Successive

The arguments of the parties center on whether Petitioner’s claim is “new” and rising out

of the June 2012 sentence, or whether Petitioner’s claim could have been raised when sentence was

imposed in 2006. However, before the court can analyze these arguments under either Suggs or

Magwood, the court must first determine whether there has even been a “resentencing” or

“intervening judgment” so that those cases would apply.

In both Suggs and Magwood, the prisoner petitioners successfully challenged their

judgments under the habeas statutes. Suggs, 705 F.3d at 281; Magwood, 130 S.Ct. at 2793. In

1

1

Suggs involved a § 2255 petition of a prisoner in federal custody pursuant to a federal
judgment, whereas Magwood involved a § 2254 petition of a prisoner in custody pursuant to a
state court judgment. However, the bar on successive challenges under § 2254 is parallel to the

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Suggs, the petitioner successfully alleged in his initial § 2255 petition that he received ineffective